In legalese, the landlord's failure
to maintain the rental is known as a "constructive eviction" of the
tenant. The reasoning is a bit tortured, but it goes like this: Having failed
to maintain a habitable rental, the landlord has made it impossible for people
to live there. Without physically removing the tenant, the landlord has
indirectly removed him by making the rental unlivable. Once that happens, the
lease has been broken by the landlord, and the tenant is free to move out,
without lingering responsibility for future rent.

Kinds of Constructive Eviction

Constructive eviction can result
from negligent maintenance, or from intentional conduct. For example, a
landlord who wants to pressure a tenant to leave might deliberately violate his
tenant’s rights in order to make him so unhappy or uncomfortable that he has to
leave.

Responses to Failure to Maintain the Property

When the issue is poor maintenance that results in unfit
dwellings, many tenants have options other than to claim constructive eviction and
move out. In many states, they can avail themselves of the following remedies:

Repair
and deduct. Tenants fix the problem and deduct the cost from the rent.

Rent
withholding. Tenants withhold the rent until the landlord takes care of the
problems. Many states require tenants to work through the courts to accomplish
this.

Lawsuits.
Tenants may sue for their damages, such as the cost of buying a space heater while
the furnace was broken.

Follow State Procedures Carefully

Before utilizing any of the remedies mentioned above, tenants must
be familiar with their state law and its procedures when it comes to repair and deduct and rent withholding. Typically, tenants must
give landlords written notice of the problem and time to fix it. State law may
define the amount of time that the tenant needs to wait. With repair and
deduct, state laws specify how much money the tenant can spend, and how often.

Tenants who do not follow the letter of the law are taking a big risk. With repair and deduct and rent withholding, they are paying less or no rent to the landlord. A landlord who thinks the tenant has used the remedy incorrectly or for a repair that was not needed may terminate the tenancy for nonpayment. If the tenant decides to stay and fight an eviction lawsuit, that's an expensive, grueling, and risky step. Be very sure that the repair problem is major, and that you understand your state's procedures, before paying less or no rent.